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Evidence - Post-Offence Conduct
MORE CASES
Part 2
. R. v. U.K.
In R. v. U.K. (Ont CA, 2023) the Court of Appeal considered the legal treatment of 'fabrication', which it categorized as a form of post-offence conduct:(ii) Legal principles regarding fabrication
[70] A statement or evidence by an accused person found to have been deliberately fabricated (or concocted) is a type of post-offence conduct. Our courts have developed special rules applicable to alleged fabricated statements or evidence because of the risk posed by this type of inference of inadvertently shifting the burden of proof by turning a disbelieved statement or evidence into positive evidence of guilt.
[71] The law draws a distinction between statements or testimony by an accused which are disbelieved, and therefore, rejected, and statements or testimony which are found to be fabricated in an effort to avoid culpability. A disbelieved statement or evidence has no evidentiary value. A statement or evidence found to be fabricated in an effort to avoid liability may be considered as circumstantial evidence of guilt: R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.), at pp. 202-03; R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 17; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. 3(d) 277 at para. 38; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321 at para. 52.
[72] There must be independent evidence of fabrication before a trial judge may instruct a jury that they may consider deliberate fabrication by an accused for the purpose of avoiding liability as circumstantial evidence of guilt. The requirement of independent evidence of fabrication exists in order to maintain the distinction between statements or evidence which are merely disbelieved and statements or evidence which are found to be fabricated. Independent evidence in this context means evidence beyond disproving the exculpatory statement. There must be evidence that the exculpatory statement was deliberately made for the purpose of avoiding liability: Coutts, at p. 203, O’Connor, at paras. 18-21; Al-Enzi, at para. 39; R. v. Laliberté, 2016 SCC 17, [2016] 1 S.C.R. 270, at para. 4.
[73] It is true that as a matter of logic, it is often the case that if an accused’s statement or trial evidence is disbelieved and rejected, an inference that they must have fabricated their statement would logically flow. However, the distinction between an accused’s disbelieved statement or evidence and a fabricated statement or evidence is essential to maintaining the burden of proof on the Crown in cases where statements are tendered or an accused testifies. In Coutts, at p. 203, Doherty J.A. explained the rationale for the special treatment of evidence argued to constitute a fabricated statement or testimony as follows:If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused's guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. See also O’Connor, at para. 19; Clause, at paras. 53-54.
[74] The distinction fundamental to the jurisprudence on this issue is that it is not disbelief of an accused’s evidence that may provide circumstantial evidence of guilt. Rather, it is the attempt to deceive that supports an inference of fabrication with an intent to avoid liability: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 57-59, 61-67.
[75] In O’Connor, this court explained that what can constitute independent evidence of fabrication differs where the alleged fabrication relates to the testimony of an accused at trial, as opposed to an out-of-court statement. O’Connor J.A. explained in O’Connor, at para. 25, that the distinction is based in the potentially greater risk of shifting the burden of proof where an allegation of fabrication of trial evidence is under consideration:When an out-of-court statement of an accused is introduced into evidence, it does not have the same immediate connection to the trial itself as an accused's testimony, and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown. [76] In other words, the risk that a jury will inadvertently shift the burden of proof is qualitatively different where the jury is instructed to consider whether an accused’s trial evidence was deliberately fabricated to avoid liability, and that they may use such a finding as circumstantial evidence of guilt. Such an instruction risks undermining the burden of proof on the Crown because, if too readily given, a jury may use mere disbelief of an accused’s evidence as positive evidence on the scale to prove guilt. This would undermine the third branch of the W.(D.) analysis. For this reason, what may constitute independent evidence of fabrication is different where the allegation of fabrication relates to out-of-court statements rather than to trial evidence.
[77] Where the allegation of fabrication relates to an out-of-court statement, independent evidence of fabrication may be found in the circumstances in which the statement was made, including the timing, as well as its logical implausibility, level of detail, or internal inconsistencies in the statement: O’Connor, at paras. 23-24, 26-27, 31; R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 172-73; R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at paras. 48-50; Al-Enzi, at para. 40.
[78] However, where fabrication of trial evidence is alleged, what may be considered as evidence of fabrication is more restricted. Unlike for out-of-court statements, where there is an allegation of fabrication of trial evidence, the circumstances surrounding the testimony, such as logical implausibility or internal inconsistencies, cannot constitute independent evidence of fabrication. This principle was put as follows by O’Connor J.A. in O’Connor: “Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused’s testimony and the fact that the accused is found to have testified falsely at trial”: O’Connor, at para. 23; R. v. Iqbal, 2021 ONCA 416, at paras. 55-56; Wright, at para. 48. An example of the type of independent evidence that can provide a basis to instruct a jury on fabrication of trial evidence is evidence from another witness that the accused attempted to persuade them to lie about the accused’s whereabouts at the time of the offence: R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 165; R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 98; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (C.A.), at paras. 153-55.
[79] Whether the evidence in a given case amounts to independent evidence of fabrication is necessarily a fact-specific exercise.
[80] Finally, in cases where there is independent evidence of fabrication of either a statement or trial evidence, a trial judge must properly instruct the jury. I address the issue of the content of jury instructions further below.
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[96] The jurisprudence establishes that instructions to a jury regarding an allegation that a statement or trial evidence is fabricated should include at least the following:. An explanation of the distinction between a disbelieved statement or evidence and a fabricated statement or evidence, and that mere disbelief has no evidentiary value;
. An explanation that in order to find that a statement or evidence is fabricated, the jury must find that there is evidence of fabrication independent of the evidence which discredits or contradicts the accused’s version of events;
. An explanation of what is capable of constituting independent evidence of fabrication (and some review of the relevant evidence);
. That if the jury concludes that the statement or evidence is false, the jury must consider other explanations for the false statement or evidence before concluding that the statement or evidence was intentionally fabricated for the purpose of avoiding liability. The trial judge should review the relevant evidence of other explanations. See: O’Connor, at paras. 38, 42; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 117; Al-Enzi, at para. 41; Wright, at paras. 42-46; Clause, at paras.62-64; R. v. Oland, 2016 NBCA 58, at para. 67; David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed.(Toronto: Carswell, 2015), at pp. 362-274; Canadian Judicial Council, Model Jury Instructions, Part III, Final Instructions, 11.14 After-the-Fact or Post-Offence Conduct (Consciousness of Guilt), June 2012, online: .
[97] It is not necessarily the case that the absence of one of these elements will render an instruction insufficient. An appellate court must take a functional approach to reviewing a jury charge, and review the impugned instructions in the context of the charge as a whole: Calnen, at paras. 8-9; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35 , at paras. 17-21; see also Al-Enzi, at paras. 43-46. However, the fabrication instruction in this case was deficient in multiple ways. . R. v. Atienza
In R. v. Atienza (Ont CA, 2023) the Court of Appeal considers the evidentiary issue of 'post-offence conduct':[91] The Supreme Court considered the principles applicable to admissibility of evidence of post-offence conduct in Calnen. The treatment of evidence of post-offence conduct is “highly context and fact specific”. The threshold to establish relevance is not high. Evidence, including evidence of post-offence conduct, will be relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.” Post-offence conduct is circumstantial evidence. As such, it allows a trier of fact to draw inferences (or choose not to do so) from the conduct relying on logic, common sense, and experience. The inferences must be reasonable based on human experience. Whether an inference is reasonable in any particular case will depend on the nature of the conduct, what is sought to be inferred from the conduct, the positions of the parties, and the whole of the evidence. The existence of explanations other than guilt for post-offence conduct does not generally render such evidence as having no probative value.[5] In most cases, it is for the jury to assess the evidence of post-offence conduct in the context of all of the evidence, and consider what inference, if any, to draw from it in the context of any explanations: Calnen, at paras. 106, 108-112 (per Martin J. for the majority on this issue).
[92] Immediate flight by two accused persons from the scene of a crime together, and continued association on good terms after an offence may be probative of planning and deliberation. In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A., writing for this court, held that flight together from the scene of a shooting, laughing together after the fact, and disposing of evidence could support the inference that the two accused had “done exactly what they planned to do, that is, enter the club, commit a robbery and shoot [the victim]”: at paras. 14‑15. This court has recognized other circumstances in which the conduct of an accused after an offence may be relevant to planning and deliberation: see R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 128-130; R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at paras. 55-56, 59. As noted above, the assessment of relevance for any particular inference from post-offence conduct is always a fact-specific exercise. . R. v. Millard
In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In this quote to court considers after-the-fact conduct evidence:[59] After-the-fact conduct evidence is circumstantial evidence of post-offence behaviour that is offered to support relevant inferences consistent with the accused’s guilt, the theory being that such behaviour is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: R. v. Calnen, 2009 SCC 6, [2019] 1 S.C.R. 301, at paras. 107-12: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at p. 624. The after-the-fact conduct evidence offered against Mr. Smich was his acquisition and possession of Ms. Babcock’s iPad and red suitcase, his alleged participation in the cremation of Ms. Babcock, and his composition and performance of the ashy stone rap.
[60] Often, the theory of relevance for after-the-fact conduct is that it reveals that the accused is attempting to evade responsibility, being “conscious of their guilt”. But at times, the after-the-fact conduct may actually be inspired by the accused’s consciousness of guilt relating to an offence other than the one the Crown is offering the after-the-fact conduct evidence to prove. In R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, for example, the accused may have fled the scene of a stabbing because he was conscious that he was involved in an assault other than the charged stabbing. Where after-the-fact conduct is equally consistent with consciousness of guilt of either the offence charged, or some other offence, trial judges may have to direct jurors that the evidence has no probative value because it is incapable of supporting safe inferences (the “no probative value” instruction): Arcangioli, at p. 145. But where the after-the-fact conduct can reasonably be treated as more consistent with the offence the Crown is using it to prove, it is for the jury to determine how much weight, if any, to give to that evidence. However, the trial judge should provide an instruction regarding the proper use of that evidence, including by explaining the use to which the evidence can be put and cautioning jurors to consider whether the after-the-fact conduct is attributable to consciousness of guilt of the offence the evidence is offered to prove (the “proper use” instruction): R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 24-29, 36; Calnen, at paras. 117, 124. . R. v. Yabarow
In R. v. Yabarow (Ont CA, 2023) the Court of Appeal reviewed the evidence law of 'after-the-fact conduct' [aka 'post-offence conduct']: i. The General Principles
[23] After-the-fact conduct evidence is a form of circumstantial evidence that encompasses the statements and actions of the accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence; it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106-7, per Martin J. (dissenting, but not on this point).
[24] After-the-fact conduct evidence can be admitted for its relevance on the issue of the accused’s state of mind: Calnen, at para. 119. As this court explained in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42 (“White (2011)”):The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, ‘as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind’. [Citations omitted.] [25] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn. It will be irrelevant to a particular issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct does not allow the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124.
[26] In providing instructions respecting after-the-fact conduct evidence, it is important that the trial judge set out the use to which the evidence can be put and the inferences that are available to the jury: Calnen, at para. 115. Where the conduct is equally consistent with competing inferences, the trial judge should provide a limiting or no probative value instruction to the jury: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 145; White 2011, at para. 60.
[27] These instructions are important because after-the-fact conduct evidence poses unique reasoning risks. As the Supreme Court has recognized, jurors may be tempted to “jump too quickly from evidence of [after-the-fact] conduct to an inference of guilt” without properly considering alternative explanations for the conduct in question: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 57 (“White (1998)”). In many circumstances, trial judges can address this risk by providing a general cautionary instruction, informing the jury of other explanations for the accused’s actions: White (1998), at para. 57; White (2011), at para. 24. However, as noted above, some circumstances involving the use of after-the-fact conduct evidence may require a trial judge to do more and counter a specific reasoning risk by providing a limiting instruction: Calnen, at para. 118.
[28] This is often the case where the accused has admitted to the actus reus of the offence and the Crown seeks to rely on the after-the-fact conduct evidence to demonstrate a specific level of intent. In these cases, after-the-fact conduct evidence will often not be relevant to distinguishing between levels of intent, as such evidence will be equally consistent with multiple offences: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 52; Calnen, at para. 121. However, there are some cases, such as when an accused’s after-the-fact conduct is out of proportion to an alternative explanation, that the evidence may be relevant in discerning an accused’s level of culpability: see Calnen, at paras. 148-50. . R. v. Gaetan
In R. v. Gaetan (Ont CA, 2023) the Court of Appeal characterizes after-the-fact conduct evidence:[40] Evidence of after-the-fact conduct is a form of circumstantial evidence. It is admissible if it is relevant to a live, material issue, its admission does not offend an exclusionary rule of evidence, and its probative value exceeds its prejudicial effects: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107 per Martin J. (dissenting, but not on this point). Accordingly, after-the-fact conduct evidence can be admitted when it is relevant to the issue of the accused’s state of mind: Calnen, at para. 119. As this court summarized in R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at para. 55, citing R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at pp. 383-84, and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42:The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact, depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person’s participation in a crime, but of no value in determining the person’s level of culpability. In other cases, “as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind”. [Citations omitted.] [41] The relevance of after-the-fact conduct evidence is assessed on a case-by-case basis and is fact-driven: Calnen, at para. 108. The question is whether the evidence is capable of supporting the inference sought to be drawn about the accused’s state of mind. It will be irrelevant to this issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct no longer allows the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124. When this is the case, a trial judge must provide a limiting or no probative value instruction to the jury: White, at para. 60. However, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: Calnen, at paras. 112, 144.
[42] In providing instructions respecting after-the-fact conduct evidence to the jury, it is important that the trial judge sets out the use to which the evidence can be put and the inferences that are available: Calnen, at para. 115. It will be for the jury to determine whether the after-the-fact conduct evidence is related to the crime before them rather than some other reaction or culpable act. This accords with the fact that “it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it”: Calnen, at para. 124. . R. v. Lawlor
In R. v. Lawlor (Ont CA, 2022) the Court of Appeal considers 'after-the-fact conduct' evidence:[107] After-the-fact conduct refers to anything done by the accused after the commission of the offence; it may be put to a variety of uses and its utility is not confined to supporting an inference that the accused “had a guilty mind”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 19, 20. Not all after-the-fact conduct requires a specific instruction or caution: White, at para. 21. As this court noted in R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 58: “[A]s a general rule, evidence of post-offence conduct is not subject to special admissibility rules. Nor does it require that a trial judge caution the jury about its use in proof of guilt”. . R. v. Worrie
In R. v. Worrie (Ont CA, 2022) the Court of Appeal considers 'after-the-fact' conduct evidence:[141] After-the-fact conduct evidence is evidence of “what the accused both said and did after the offence charged in the indictment was allegedly committed”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J., dissenting, but not on this point. It “is circumstantial evidence that may help the trier of fact determine the accused’s culpability for the crime”: R. v. Vorobiov, 2018 ONCA 448, at para. 54, leave to appeal refused, [2019] S.C.C.A. No. 440; and is “generally admissible to show that the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person”: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 51. . R. v. Gough
In R. v. Gough (Ont CA, 2020) the Court of Appeal comments on the admission of evidence of 'post-incident' conduct (aka post-offense conduct):[51] In cases where evidence of post-incident conduct is tendered to prove an essential element of the Crown’s case, its admission is governed by general evidentiary principles. The evidence must be relevant to a material issue at trial. It must be admissible. And its probative value must outweigh its prejudicial effects: R. v. Adan, 2019 ONCA 709, at para. 65.
[52] Determining the relevance of post-incident conduct evidence “is necessarily a case-by-case, ‘fact-driven exercise’”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J. (dissenting, but not on this point). In some cases, this evidence may be relevant to the issue of intent and to distinguish between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). In others, it may be used to prove that a murder was planned and deliberate: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at paras. 14-15; R. v. Poitras (2002), 2002 CanLII 23583 (ON CA), 57 O.R. (3d) 538 (C.A.), at para. 11; R. v. Azzam, 2008 ONCA 467, 91 O.R. (3d) 335, at paras. 46, 49; and R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174, at para. 5.
[53] Despite its reception, evidence of post-incident conduct may pose unique reasoning risks. The separation in time of the events which form the subject-matter of the charge may make it more difficult to ground the inference that the murder was planned and deliberate. The evidence may have a veneer of cogency disproportionate to its true probative value. It may spur speculation, spawn imprecise reasoning and encourage decision makers, such as an untutored jury, to jump to dubious conclusions: Calnen, at para. 116, per Martin J. (dissenting, but not on this point). . R v Kler
In R v Kler (Ont CA, 2017) the Court of Appeal clarifies that the law does not take a categorical approach to post-offence conduct, it's evidentiary treatment all depends on the nature of the conduct:[125] Whether the descriptive used is post-offence conduct or after-the-fact conduct, the designation tells us that what is involved is evidence of things done or said after an offence has been committed: not before and not at the same time, but after. This is circumstantial evidence to which no special rule attaches: R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, at paras. 31, 105, 185.
[126] As with circumstantial evidence generally, jury instructions about the use of evidence of post-offence conduct must not invite the jury to apply the criminal standard of proof to the individual items of evidence: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 42-49.
[127] The courts eschew a list or category approach to determine whether things done or said after an offence has been committed may be relied upon as evidence of post-offence conduct. It all comes down to relevance. Examples of relevant evidence abound, among them, evidence than an accused destroyed or attempted to destroy objects that tended to link him or her to the commission of the offence charged. See e.g. R. v. Vant, 2015 ONCA 481 (CanLII), 324 C.C.C. (3d) 109, at para. 129.
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